Scottish Court of Session Decisions

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Cite as: [1880] ScotLR 18_59, [1880] SLR 18_59

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SCOTTISH_SLR_Court_of_Session

Page: 59↓

Court of Session Inner House Second Division.

[Sheriff of Rosshire.

Tuesday, November 9. 1880.

18 SLR 59

Wilkinson

v.

Bain.

Subject_1Husband and Wife
Subject_2Wife's Title to Sue without Consent of Husband.

Facts:

A married woman brought an action without consent and concurrence of her husband, for aliment for an illegitimate child of which she alleged the defender to be the father. There was no evidence to the effect that her husband was dead or that his consent could not be obtained. Held ( per Lords Justice-Clerk and Young) that she had no title to sue, and that the action was not maintainable.

Headnote:

Grace Helen Stewart or Wilkinson, a married woman, brought an action in her own name, and without consent or concurrence of her husband, against Peter Bain, preventive man of Inland Revenue, in the Sheriff Court of Rosshire at Stornoway, in which she concluded against him for aliment at the rate of £8 sterling for ten years from 1st November 1879, for an illegitimate female child born on that date, of which she alleged him to be the father. The petition also concluded for a sum of inlying expenses. The pursuer was the daughter of an innkeeper at Garrynahine in the island of Lewis. The defender resided at Stornoway, and in the course of his duties as an officer of Inland Revenue had occasion to be sometimes at the pursuer's father's inn at Garrynahine.

The pursuer stated that she was married in London in 1871 to George Joseph Wilkinson, a cabman there, that she was deserted by him there in 1876, and that in that year she came home to her father's house in Lewis, and that for four years she had not seen or heard of him. In these circumstances she pleaded—“(1) The pursuer's husband being dead, or otherwise having deserted her, she is entitled to pursue this action in her own name and grant a valid discharge for the sum sought to be recovered.”

The Sheriff-Substitute ( Spittal) on 3d July 1880, after a proof, assoilzied the defender, and on 12th August 1880 the Sheriff adhered.

The pursuer appealed.

There was no evidence to show that the husband was dead and that his consent could not be obtained.

Judgment:

At advising—

Lord Justice-Clerk—( After expressing concurrence with the Sheriffs on the facts)—There is a preliminary question which was not raised by the defender, but which is of so great importance that I do not know that it is not our duty to give an opinion on it. The pursuer is a married woman, and this is an action for payment of money brought without her husband's consent, and without any evidence that her husband's consent cannot be obtained, and the question is, whether she has any title to sue? Whether she could sue without that concurrence with a tutor-ad-litem is another question; but I am certainly not aware of any case where it has been held that a married woman can sue an action for a money payment without the concurrence of her husband.

I am not sure that there is not another and greater question in the case, and that is, whether the wife has not to discharge the burden of showing that her husband could not have been the father of the child? On that I give no opinion, but I am not satisfied that the pursuer has any title to sue this action, particularly when I consider the terms of her first plea-in-law.

Lord Gifford concurred on the merits of the case, and gave no opinion on the question of competency.

Lord Young—The interesting and important feature of this case is that to which your Lordship in the chair last adverted. My view of the case goes deeper than the mere question of title to sue. The case relates to the child of a married woman, and the child of a married woman is prima facie her husband's. He is entitled to have it, and he is bound to support it. What he may establish in order to relieve himself of his obligation in regard to it it is not hujus loci to consider. He is not here to establish anything at all, or to part with the rights or free himself of the liabilities of a husband. It is a proposition new to me that if a husband desired to have a child delivered over to him which was the offspring of his lawful wife, another man could come forward and say, “No, I have right to it, for I begot it;” or that the mother can hand over the child to another man than her husband and say, “It is yours.” It is not hujus loci to consider what a husband may establish in order to get rid of a wife who has misconducted herself, or of the obligation to support a child of which it is impossible that he should be the father. All we know is, that the child is that of a married woman, and there is no reason to hold that the husband is trying to get rid of the burden of supporting it. So, irrespective of the merits of the case, I am of opinion that the action is not maintainable.

The Court dismissed the appeal.

Counsel:

Counsel for Appellant— Nevay. Agent— W. R. Skinner, S.S.C.

Counsel for Respondent— A. J. Young. Agents— Morton, Neilson, & Smart, W.S.
1880